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References and the disciplinary and grievance process
An employer is not obliged to give a reference, and any reference must be true, accurate and fair, but there is no duty to be full and comprehensive. An employer should never be asked to lie in a reference.
A refusal to give a reference can amount to unlawful victimisation, for example, where a reference request is refused because the worker issued a grievance alleging discrimination. The amount of time between the grievance and the reference request is irrelevant. What matters is that the reference request was refused because of the grievance.
Where a person resigns once a disciplinary investigation has been started, it is likely to be fair for an employer to refer in any reference to the fact that the investigation was started, as long as the reference tells the truth about the stage reached by the investigation, for example, stating that the employee left before any findings were made, or before the disciplinary hearing took place. Alternatively, in these circumstances, an employer may decide not to supply a reference.
Similarly, where concerns are raised after an employee has left the employer, an employer may be able to refer to these concerns in a reference, as long as the reference makes it clear that they have not been investigated:
Mr Jackson, a social worker, left Liverpool City Council (LCC) to join Sefton Borough Council (SBC). After he left LCC, concerns were raised about aspects of his work. These concerns were not investigated, as Mr Jackson was no longer employed by LCC. But when asked to give a reference to SBC, LCC manager Ms Griffiths left blank the question “Would you re-employ him?”, and when asked to identify any weaknesses, she referred to “record keeping” issues that were not investigated but would have led to a “formal improvement plan” if Mr Jackson had stayed on. Ms Griffiths provided more detail by phone, again pointing out that no investigation had taken place.
The Court of Appeal held that LCC could not be criticised for providing the reference in these terms. It owed a duty to use “reasonable care and skill” to make sure the reference was accurate. However, this duty did not extend to carrying out a formal investigation of the allegations made about Mr Jackson’s performance after he had left the organisation, or to raising them with him before giving the reference, as long as the person giving the reference made it clear that these were only allegations which had not been investigated.
The alternative would have been for LCC to refuse to provide any reference at all, or to suggest that the new employer should direct its inquiries to the employee himself, neither of which would have been any more helpful to Mr Jackson.
Jackson v Liverpool City Council [2011] EWCA Civ 1068